In Pilate and Jesus, Giorgio Agamben argues that Pontius Pilate never formally condemned Jesus of Nazareth. “The traditional interpretation of Jesus’ trial … must be revised,” he urges, because “there has not been any judgment in a technical sense.” In Agamben's telling, Pilate's non-judgment is the original truth of Jesus's death that has been covered over by tradition. This is an intriguing hypothesis, but Agamben's use of sources in arguing it is highly irregular. This article offers a critique of the legal and philological argumentation of Pilate and Jesus. In the process, it revisits an ancient—and still actual—controversy surrounding the Roman trial of Jesus and demonstrates that Pilate did sentence Jesus, pro tribunali, to death on a cross.

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3 And for the marked influence of Enzo Melandri on Agamben's concept of “philosophical archaeology,” see Agamben, , The Signature of All Things: On Method, trans. D'Isanto, Luca with Attell, Kevin (New York: Zone, 2009), 96–107.

6 More recent is Agamben, , Stasis: Civil War as a Political Paradigm, trans. Heron, Nicholas (Edinburgh: Edinburgh University Press, 2015).

7 Agamben, Pilate and Jesus, 57.

8Bloch, , The Spirit of Utopia, trans. A., Anthony Nassar (Palo Alto: Stanford University Press, 2000), 168. Note that although the first edition of Bloch's Geist der Utopie is dated 1918, most of the book was drafted in the years 1915–16.

9 Agamben, Pilate and Jesus, 57.

10 The contrast could not be sharper with Bloch's materialist reading of Jesus's trial. Bloch has nothing but contempt for what he reads as the “noblesse” of Pilate and the “defeatism” of Jesus, particularly in John's trial narrative. “It is incompatible with the courage and dignity of Jesus,” Bloch decides, “that he should use such defeatist words in front of Pilate.” (He has in mind especially John 18:36: “My kingdom is not of this world.”) Bloch is adamant that “the Romans convicted Jesus as a revolutionary” (emphasis added), while he cannily appeals to Jesus's titulus as evidence of a Roman sentence. Bloch, Ernst, Atheism in Christianity: The Religion of the Exodus and the Kingdom, trans. Swann, J. T. (London: Verso, 2009), 112–23. For a discussion of biblical translations used, see footnote 38.

16 Philo's Greek speaks directly to Agamben's thesis in Pilate and Jesus. With the phrase I translate here as “extrajudicial killings,” Philo criticizes Pilate for having put to death Roman subjects in Judaea “without a trial”—or, more literally, “without a judgment” (tous akritous … phonous). In Pilate and Jesus, Agamben argues precisely that Pilate handed Jesus over to be crucified “without a judgment” (akritos).

This Philonic passage elicits a comparison with two Lukan sentences:

“Is it lawful for you,” Paul challenges a tribune in Jerusalem, “to scourge a man who is a Roman citizen and has not been sentenced [akatakriton; Vulgate indemnatum]?” (Acts 22:25)

And again, this is Paul's challenge to a Roman officer: “They have beaten us publicly, without our having been sentenced [akatakritous; Vulgate indemnatos], men who are Roman citizens.” (Acts 16:37)

These are the only New Testament occurrences of akatakritos—a peculiarly Lukan term that seems to carry the same sense as Philo's akritos.

Unlike Paul, of course, Jesus was not a civis Romanus. Paul had a citizen's panoply of rights; Jesus did not. The crucial point for us, however, is that Luke clearly had a term at his disposal–“unsentenced” or “uncondemned” (akatakritos)—to characterize Jesus's death if Pilate had sent him to the cross without having sentenced him. The origins of this procedural terminology in classical Athenian law are sketched by Carawan, Edwin M., “Akriton Apokteinai: Execution without Trial in Fourth-Century Athens,” Greek, Roman and Byzantine Studies25, no. 2 (1984): 111–21. And it is worth noting that neither the Lukan term akatakritos nor the Philonic term akritos occurs in the New Testament—or, to my knowledge, in any early Christian text—apropos of Jesus's death.

22Institutiones 4.4; Justinian's “Institutes,” ed. Krueger, Paul, trans. Birks, Peter and McLeod, Grant (London: Duckworth, 1987), 126–27. Difficulties arise, however, as soon as we consider the special definitions of iniuria set out in Institutiones 4.4 (where any unjust verdict constitutes iniuria: the evangelists of course regard Pilate's verdict as unjust, even if the trial is procedurally valid); the Lex Aquilia at Institutiones 4.3 (where it is never iniuria to kill a latro, that is, a “bandit” or “rebel”: Pilate decrees that Jesus should be crucified between two latrones, and he sentences him as a rebel); and the Lex Julia at Digesta 48.7 (where only Roman citizens can suffer judicial iniuria: Jesus is, of course, not a Roman citizen).

29 For an argument that Pilate was “a prefect determined to promote a form of Roman religion in Judaea,” see Taylor, Joan E., “Pontius Pilate and the Imperial Cult in Roman Judaea,” New Testament Studies52, no. 4 (2006): 555–82.

30 It has recently been argued that Pilate administered Judaea from 17/18 to 36/37 C.E., but the accepted dates are still 26 to 36 C.E. See Chapman, David W. and Schnabel, Eckhard J., The Trial and Crucifixion of Jesus: Texts and Commentary, Wissenschaftliche Untersuchungen zum Neuen Testament 344 (Tübingen: Mohr Siebeck, 2015), 158–63.

36Ibid.; Agamben, Pilato e Gesú, 8–9. Agamben's reference here is to Inferno 1.70, where Vergil introduces himself to the poet, saying, “I was born sub Julio.” The Inferno of Dante: A New Verse Translation, trans. Pinsky, Robert, annot. Pinsky, Nicole (New York: Farrar, Straus and Giroux, 1994), 4. As Agamben surely knows, Dante's late medieval chronography is far from exemplary. Vergil was born in 70 B.C.E.—under the Republic, not sub Julio.

37 Agamben, Pilate and Jesus, 2.

38 I often quote the Douay-Rheims (D-R) translation of the New Testament—and always the Vulgate—from The Vulgate Bible, vol. 6, The New Testament, Douay-Rheims Translation, Dumbarton Oaks Medieval Library 21, ed. Kinney, Angela M. (Cambridge, MA: Harvard University Press, 2013). But I have, with some frequency, preferred the New Revised Standard Version (NRSV) of The Book of Common Prayer … According to the Use of The Episcopal Church (New York: Oxford University Press, 2007). Note that I have at places silently modified the English of both translations in light of the Greek original.

48 According to an inscription on a limestone block that was recovered at Caesarea Maritima in Israel, in 1961, where [PO]NTIVS PILATVS is titled the [PRAEF]ECTVS IVDA[EA]E. For a reconstructed text, translation, and level-headed interpretation of this “architectural dedication dating to A.D. 31–36,” see Chapman and Schnabel, Trial and Crucifixion of Jesus, 165–67.

49 The scholarly consensus is that the crucifixion occurred on April 7, 30 C.E. But Helen Bond has very recently argued that “all that the evidence allows us to claim is that Jesus died … between 29 and 34 CE.” Bond, Helen K., “Dating the Death of Jesus: Memory and the Religious Imagination,” New Testament Studies59, no. 4 (2013): 461–75.

51 Chapman and Schnabel, Trial and Crucifixion of Jesus, 196 (“Tacitus mentions Pontius Pilatus only because he wants to provide the historical context for the execution of Jesus … which he presents as the result of a legally correct trial.”).

54 According to Mishnah Sanhedrin 7.1, the only methods of execution permitted under Judaic law are stoning, burning, “slaying” (that is, beheading), and strangling. See Winter, Paul, On the Trial of Jesus, Studia Judaica: Forschungen zur Wissenschaft des Judentums 1 (Berlin: Walter de Gruyter, 1961), 70; Bickerman, E. J., “Utilitas Crucis: Observations on the Accounts of the Trial of Jesus in the Canonical Gospels,” in Studies in Jewish and Christian History: A New Edition in English Including The God of the Maccabees, Arbeiten zur Geschichte des Antiken Judentums und des Urchristentums 68, ed. Tropper, Amram (Leiden: Brill, 2007), 2:784.

70 For the classical specificity of endeixis, see MacDowell, Douglas M., The Law in Classical Athens (Ithaca: Cornell University Press, 1978), 57–61. Note also the definitions listed at Liddell, Henry George and Scott, Robert, A Greek–English Lexicon, rev. Jones, Henry Stuart, with McKenzie, Roderick
et al. (Oxford: Oxford University Press, 1996), 558, s.v. “ἔνδειξις.” According to Liddell and Scott, the Greco-Roman “law-term” endeixis can denote the “laying of information against one who discharged public functions for which he was legally disqualified.” This is of course the crime designated on Jesus's titulus: he is crucified as a pretender to Israel's throne.

71 Josephus, Antiquitates Judaicae 18.63–64.

72 Mark 15:10 ≈ Matthew 27:18. I use two symbols throughout this essay to indicate cases in which the wording of a verse or phrase in one gospel is identical (=) or nearly identical (≈) to one in the same or another gospel.

73 Mark 15:14; Matthew 27:23; Luke 23:22.

74 Luke 23:4, 23:13–15, 23:22; John 18:38, 19:4, 19:6.

75 Luke 23:14.

76 Luke 23:24 (D-R).

77 Luke 23:24 (NRSV).

78 According to Mark 15:27 (duo lēstas) and Matthew 27:38 (duo lēstai). What is crucial about the term lēstēs in Matthew and Mark is that it designates a public criminal (and a public enemy), rather than a man sentenced under Roman private law. The Vulgate's latrones is, thus, accurate—as can be inferred from Digesta 50.16.118. Modern English renderings tend to obscure this Greco-Roman legal sense of lēstēs-latro. Less specific is Luke 23:32, where Jesus is sent to the cross with “two other malefactors” (heteroi kakourgoi duo). In John 19:18, Jesus is merely crucified between “two others” (allous duo)—although John 18:40 specifies that Barabbas was a lēstēs. The evangelists all position Jesus's cross in the middle of the group.

87 A feast of Saint Procla is still observed on October 27 in the Orthodox churches. Laporte, Claude, Tous les saints de l'Orthodoxie (Vevey: Xenia, 2008), 554. Unaccountably, the date of October 26 is given at Agamben, Pilato e Gesú, 16; Agamben, Pilate and Jesus, 8.

91 For the most credible report of Pilate's suicide, see Eusebius, Historia Ecclesiastica 2.7; The Ecclesiastical History, 1:124–27. And for a critical review of this tradition, see Maier, Paul L., “The Fate of Pontius Pilate,” Hermes99, no. 3 (1971): 362–71, at 369–71.

123 There is a rising trend in New Testament interpretation to see the gospels—and the evangel—in Roman imperial terms. For a recent analysis of Jesus's depiction as a “world ruler” in the Gospel of Mark, which persuasively situates this “in the context of Roman political ideology,” see Winn, Adam, “Tyrant or Servant? Roman Political Ideology and Mark 10.42–45,” Journal for the Study of the New Testament, 36 no. 4 (2014): 325–52.

135 Incredibly, the topic of von Ammon's 1926 doctoral thesis is “the binding unlawful command.” von Ammon, Wilhelm, Der bindende rechtswidrige Befehl, Strafrechtliche Abhandlungen 217 (1926; repr. Frankfurt: Keip, 1977). After the Second World War, von Ammon was found guilty of crimes against humanity by the Nuremberg Tribunal. The prosecution cited his enforcement of the notorious Nacht und Nebel decree of December 7, 1941—which is to say, his enforcement of a “binding unlawful command.”

144 A sentence written in the 1970s still delivers a sharp rebuke to Agamben: “[T]he title ‘Jesus and Pilate’ does not do justice to the trial before Pilate, as it is set forth in the Fourth Gospel. The real title should be ‘Jesus and the Jews before Pilate … .’” Pancaro, Severino, The Law in the Fourth Gospel: The Torah and the Gospel, Moses and Jesus, Judaism and Christianity according to John (Leiden: E. J. Brill, 1975), 307.

154 According to Hoffman, Hiecke, and Bauer, Synoptic Concordance, 2:538, and Aland, Synopsis Quattuor Evangeliorum, 479, the only Synoptic parallel to epikrinein in Luke 23:24 is boulomenos at Mark 15:15.

163 This thematic is elegantly summarized at Pancaro, Law in the Fourth Gospel, 324–25.

164 Agamben, Signature of All Things, 100–1.

165 Blinzler, Prozess Jesu, 175.

166 Agamben, Pilate and Jesus, 47–48; Agamben, Pilato e Gesú, 65–66.

167 Matthew 20:18–19, 27:1–2, 27:11–13; Mark 10:33–34, 14:63–64, 15:1–4; Luke 22:71, 23:2; John 18:28–30, 18:35. Especially important are Matthew 20:18–19 ≈ Mark 10:33–34, where it is prophesied that Jerusalem's priestly courts will “condemn (katakrinousin) Jesus to death,” and then “hand him over (paradōsousin) to the Gentiles … to be crucified.”

181 The same could be said of the central idea in Aslan's, RezaZealot: The Life and Times of Jesus of Nazareth (New York: Random House, 2013)—a zealously marketed little book in which Aslan tries to sell us, as new, the oldest historical-critical interpretation of Jesus's life, message, and death.

Aslan's thesis first appeared in print in 1778, when G. E. Lessing published a redacted and unfinished but truly seminal work by a German Hebraist who had passed away in 1768: Reimarus, Hermann Samuel, The Goal of Jesus and His Disciples, trans. Buchanan, George Wesley (Leiden: E. J. Brill, 1970). If nothing else, Zealot is evidence that Reimarus is still survived by his Jesus.

Paul Winter's 1961 assessment of the Reimarus hypothesis was, by all rights, conclusive: “Jesus of Nazareth was not in any sense of the word a λῃστής [bandit or rebel]. He was no revolutionary, prompted by political ambitions for the power of government; he was a teacher who openly proclaimed his teaching.” Winter, Trial of Jesus, 50.

David Catchpole's statements, a decade later, are no less categorical: “Jesus was no Zealot, nor was he close to the Zealots. It is altogether in excess of the evidence to regard his movement and Zealotism as parallel or in sympathy with one another.” In documentary terms, that is to say, “the ‘political Jesus’ theory is a failure.” Catchpole, , The Trial of Jesus: A Study in the Gospels and Jewish Historiography from 1770 to the Present Day, Studia Post-Biblica 18 (Leiden: E. J. Brill, 1971), 126, 270. As Zealot’s reception proves, however, the “political Jesus” theory is a lucrative failure.

182 I regret that time has not permitted me to track down a pair of extremely rare early modern tracts on Pilate's judgment:

187 Grotius, Annotationes in Novum Testamentum, 2:354. Whoever one takes to be the first orthodox proponent of Pilate's non-judgment (for example, St. Aristides), this tradition seems to be linked to a second-century docetic text, The Gospel of Peter. (Agamben appeals to this extra-canonical gospel to bolster his—unconvincing—interpretation of John 19:13 at Pilate and Jesus, 36.) In The Gospel of Peter, Pilate unyieldingly refuses to sentence Jesus. The task thus falls to Herod Antipas and “his judges”—in other words, to the Judaean authorities. It is unequivocally the tetrarch Herod, in The Gospel of Peter, who “commanded that the Lord should be taken off” and killed. Thus, after the resurrection, Pilate can unctuously protest that he is innocent of “the blood of the Son of God.” Evangelium secundum Petrum 1.1–2, 11; Elliott, Apocryphal New Testament, 154–57.

196 Paul Winter traces this tradition back to the apology by Marcianus Aristides (a.k.a. St. Aristides), who claimed that Jesus was “crucified (pierced) by the Jews.” Winter, Trial of Jesus, 58. This apology bears the significant title, To the Emperor Hadrian Caesar from the Athenian Philosopher Aristides. Aristides is reputed to have delivered his oration at Athens, in Hadrian's presence, during the imperial visit of 125/26 C.E. Like Lactantius's Divine Institutes, then, Aristides's oration was addressed to a Roman emperor.

198 In his second gloss, Agamben contrasts Matthew's account of the crucifixion—in which it is clearly “the soldiers of the governor” (27:27) who “led Jesus away to crucify him” (27:31)—with Luke's account. “Significantly,” writes Agamben, “in Luke there is not a word (non si fa parola) about the soldiers.” Agamben, Pilate and Jesus, 50–51; Agamben, Pilato e Gesú, 69–70.

Agamben does not detail the precise significance that this supposed omission has for him—but in any case, there is no such omission. We find a reference to Pilate's troops at Luke 23:36 (“and the soldiers also mocked him”), and again at Luke 23:47 (“Now the centurion … said, ‘Indeed this was a just man’”).

The indistinctness of Luke's crucifixion narrative—he says only that “they crucified him” (Luke 23:33)—has nothing to do with the later myth of a Judaic crucifixion. Rather, it is accounted for by Luke's reprise of Jesus's death in Acts 4:24–28, where the parties culpable for the crucifixion are enumerated as “Herod and Pontius Pilate with the Gentiles and the people of Israel” (4:27). According to Luke, the whole of Roman Judaea killed Jesus.

199 Grotius, Annotationes in Novum Testamentum, 2:354–55.

200Ibid., 2:355. See Chapman and Schnabel, Trial and Crucifixion of Jesus, 196 (“Tacitus mentions Pontius Pilatus only because he wants to provide the historical context for the execution of Jesus … which he presents as the result of a legally correct trial.”). And we should not overlook Josephus's reference to Pilate's sentence at Antiquitates Judaicae 18.64 (“When Pilatus had condemned him (epitetimēkotos) to the cross.”).

201 Grotius argues that Jesus's cross signifies his conviction of the “crime of sedition” (crimen seditionis) at Annotationes in Novum Testamentum, 2:355.

Agamben takes note of this opposition in his first gloss, and has the temerity to charge Augustine with “doing violence” (facendo violenza) to the syntax of John 19:16 in a Vetus Latina version (which is identical, here, to the Vulgate). Pilate and Jesus, 48; Agamben, Pilato e Gesú, 66–67. Unsurprisingly, Augustine's Latin is better than Agamben's.

208 Bickerman characterizes the procedural effect of the Sanhedrin's praeiudicium at “Utilitas Crucis,” 2:750 (“Pilate was not obliged to be content with the results of the information supplied by the Sanhedrin, but to conduct a trial in depth.”).